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704 F.

2d 577

Carmie WATKINS, Plaintiff-Appellant,


v.
L.M. BERRY & COMPANY, et al., Defendants-Appellees.
No. 82-7007.

United States Court of Appeals,


Eleventh Circuit.
May 2, 1983.

Slade Watson, Tuscaloosa, Ala., for plaintiff-appellant.


John D. Clements, Thomas, Taliaferro, Forman, Burr & Murray, William
F. Murray, Jr., Birmingham, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of
Alabama.
Before GODBOLD, Chief Judge, FAY and SMITH * , Circuit Judges.
EDWARD S. SMITH, Circuit Judge:

In this case appellant Watkins sued her employer, L.M. Berry & Company, and
others, alleging violation of the federal wiretapping statute, title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 25102520 (1976).1 The district court granted summary judgment on the merits
against Watkins, and she now appeals. We reverse and remand for further
proceedings.

I.
2

The facts have not been developed in detail, but their general outline is
undisputed. Carmie Watkins was employed as a sales representative by L.M.
Berry & Company (Berry Co.). Watkins' immediate supervisor was Martha
Little, and Little's supervisor was Diane Wright. Berry Co. was under contract
with South Central Bell to solicit Yellow Pages advertising from South Central
Bell's present and prospective Yellow Pages advertisers. Much of this

solicitation was done by telephone and Watkins was hired and trained to make
those calls.
3

Berry Co. has an established policy, of which all employees are informed, of
monitoring solicitation calls as part of its regular training program. The
monitored calls are reviewed with employees to improve sales techniques. This
monitoring is accomplished with a standard extension telephone, located in the
supervisor's office, which shares lines with the telephones in the employees'
offices. Employees are permitted to make personal calls on company
telephones, and they are told that personal calls will not be monitored except to
the extent necessary to determine whether a particular call is of a personal or
business nature.

In April or May 1980, during her lunch hour, Watkins received a call in her
office from a friend. At or near the beginning of the call (there are conflicting
indications), the friend asked Watkins about an employment interview Watkins
had had with another company (Lipton) the evening before. Watkins responded
that the interview had gone well and expressed a strong interest in taking the
Lipton job. Unbeknownst to Watkins, Little was monitoring the call from her
office and heard the discussion of the interview.

After hearing the conversation (how much is unclear), Little told Wright about
it. Later that afternoon Watkins was called into Wright's office and was told
that the company did not want her to leave. Watkins responded by asking
whether she was being fired. Upon discovering that her supervisors' questions
were prompted by Little's interception of her call, Watkins became upset and
tempers flared. The upshot was that Wright did fire Watkins the next day.
However, Watkins complained to Wright's supervisor and was reinstated with
apologies from Wright and Little. Within a week Watkins left Berry Co. to
work for Lipton.

II.
6

In Watkins' suit, Berry Co., Little, Wright, and South Central Bell are named as
defendants. Watkins based her claims on title III and the Communications Act
of 1934, 47 U.S.C. Sec. 605 (1976). South Central Bell moved for summary
judgment on the ground that it was not legally responsible for Little's actions,
which motion the district court granted. The court also dismissed the cause of
action based on the Communications Act for failure to state a claim upon which
relief could be granted.

We agree that South Central Bell is not liable on a theory of respondeat

We agree that South Central Bell is not liable on a theory of respondeat


superior. While there is no question that South Central Bell had considerable
influence on the solicitation message, Watkins alleges nothing that would
support the conclusion that South Central Bell had the kind of close control
over Berry Co.'s internal operating procedures and employment practices that
would support vicarious liability. We therefore affirm the granting of South
Central Bell's motion for summary judgment.

The district court also held that the Communications Act does not provide the
basis for a civil remedy. Watkins makes no real effort to contest this holding on
appeal. To the extent that section 605 applies to this case, any private remedy it
contains is superseded by the remedy provided by section 2520 of title III.
Section 605 was extensively revised by title III itself,2 and there is no reason to
believe that title III provided duplicative remedies. We therefore also affirm the
dismissal of the Communications Act claims.

III.
9

Title III forbids the interception, without judicial authorization, of the contents
of telephone calls. It provides:

Except as otherwise specifically provided in this chapter any person who-10


***
11
***
12
13

(b) willfully uses, endeavors to use, or procures any other person to use or
endeavor to use any electronic, mechanical, or other device to intercept any oral
communication * * *

***
14
***
15
16 be fined not more than $10,000 or imprisoned not more than five years, or
shall
both.
17

18 U.S.C. Sec. 2511(1)(b). Title III also provides a civil remedy and statutory
damages:

18

Any person whose wire or oral communication is intercepted, disclosed, or


used in violation of this chapter shall (1) have a civil cause of action against any

person who intercepts, discloses, or uses, or procures any other person to


intercept, disclose, or use such communications, and (2) be entitled to recover
from any such person-19

(a) actual damages but not less than liquidated damages computed at the rate of
$100 a day for each day of violation or $1,000, whichever is higher;

20

(b) punitive damages; and

21

(c) a reasonable attorney's fee and other litigation costs reasonably incurred.

22

18 U.S.C. Sec. 2520. Watkins' complaint is founded upon these sections.

23

It is not disputed that Little's conduct violates section 2511(1)(b) unless it


comes within an exemption "specifically provided in" title III (18 U.S.C. Sec.
2511(1)). Appellees claim the applicability of two such exemptions. The first is
the consent exemption set out in section 2511(2)(d):

24shall not be unlawful under this chapter for a person not acting under color of law
It
to intercept a wire or oral communication * * * where one of the parties to the
communication has given prior consent to such interception * * *.
25

Appellees argue that, by using Berry Co.'s telephones and knowing that
monitoring was possible, Watkins consented to the monitoring. The second is
the business extension exemption in section 2510(5)(a)(i):

26
"electronic,
mechanical, or other device" [in Sec. 2511(1)(b) ] means any device or
apparatus which can be used to intercept a wire or oral communication other than-27

(a) any telephone or telegraph instrument, equipment or facility, or any


component thereof, (i) furnished to the subscriber or user by a communications
common carrier in the ordinary course of its business and being used by the
subscriber or user in the ordinary course of its business; * * * [emphasis
supplied].

28

"[E]quipment * * * furnished to the subscriber or user by a communications


common carrier in the ordinary course of its business" means in this case
simply a standard extension telephone. See Briggs v. American Air Filter Co.,
630 F.2d 414, 417 n. 5 (5th Cir.1980). The issue is therefore whether the
monitoring of this call was in the ordinary course of Berry Co.'s business.
Briggs, 630 F.2d at 417. Appellees contend that it was and hence that the

extension telephone was not a "device" within the statutory meaning (section
2511(1)(b)) of "interception."
29

Briggs v. American Air Filter Co., decided by the Fifth Circuit in 1980,
provides the framework for interpreting these exemptions. The consent and
business extension exemptions are analytically separate. Consent may be
obtained for any interceptions, and the business or personal nature of the call is
entirely irrelevant. Conversely, the business extension exemption operates
without regard to consent. So long as the requisite business connection is
demonstrated, the business extension exemption represents the "circumstances
under which non-consensual interception" is not violative of section 2511(1)(b).
Briggs, 630 F.2d at 419. Accordingly, in analyzing the present case we will
first consider the scope of Watkins' consent to the monitoring of this call and
then move to the question whether the interception was justified as being in the
ordinary course of Berry Co.'s business, notwithstanding the absence of
consent.

A.
30

Appellees argue that Watkins' acceptance of employment with Berry Co. with
knowledge of the monitoring policy constituted her consent to the interception
of this call. This is erroneous with respect to both Watkins' actual and implied
consent.

31

It is clear, to start with, that Watkins did not actually consent to interception of
this particular call. Furthermore, she did not consent to a policy of general
monitoring. She consented to a policy of monitoring sales calls but not personal
calls. This consent included the inadvertent interception of a personal call, but
only for as long as necessary to determine the nature of the call. So, if Little's
interception went beyond the point necessary to determine the nature of the
call, it went beyond the scope of Watkins' actual consent.

32

Consent under title III is not to be cavalierly implied. Title III expresses a
strong purpose to protect individual privacy by strictly limiting the occasions
on which interception may lawfully take place. See United States v. Harpel,
493 F.2d 346, 351 (10th Cir.1974). Stiff penalties are provided for its violation.
It would thwart this policy if consent could routinely be implied from
circumstances. Jandak v. Village of Brookfield, 520 F.Supp. 815, 820
(N.D.Ill.1981). Thus, knowledge of the capability of monitoring alone cannot
be considered implied consent. See Campiti v. Walonis, 611 F.2d 387, 394 (1st
Cir.1979); Crooker v. United States Department of Justice, 497 F.Supp. 500,
503 (D.Conn.1980) (prisoners' knowledge that calls were routinely monitored

did not constitute consent to it).


33

The cases that have implied consent from circumstances have involved far
more compelling facts than those presented here. In Jandak, the police officer
whose call was intercepted knew or should have known3 that the line he was
using was constantly taped for police purposes; furthermore, an unmonitored
line was provided expressly for personal use. 520 F.Supp. at 824-25. In
Simmons v. Southwestern Bell Telephone Co., 452 F.Supp. 392, 393-94
(W.D.Okl.1978), aff'd, 611 F.2d 342 (10th Cir.1979), the plaintiff made a
personal call on telephones which were to be used exclusively for business calls
and which he knew were regularly monitored. He had been warned on previous
occasions to stop making personal calls from his business telephone; other
telephones were specifically provided for personal use. As in Jandak, the
Simmons court held that the employee was fully aware of the extent of the
monitoring and deliberately ignored the strong probability (certainty in Jandak )
of monitoring. 452 F.Supp. at 396. The Jandak and Simmons situations are
worlds apart from Watkins' case. Watkins consented to a scheme of limited
monitoring, on which she relied.

34

We can think of no reason why consent under title III cannot be limited. We
therefore hold that consent within the meaning of section 2511(2)(d) is not
necessarily an all or nothing proposition; it can be limited. It is the task of the
trier of fact to determine the scope of the consent and to decide whether and to
what extent the interception exceeded that consent.

B.
35

If, as appears from the undisputed facts, there was no consent to interception of
the call beyond what was initially required to determine its nature, appellees
must rely on the business extension exemption to shield them from liability for
any listening beyond that point. To prevail, they must show that the
interception of the call beyond the initial period was in the ordinary course of
business. Briggs, 630 F.2d at 417. It is not enough for Berry Co. to claim that
its general policy is justifiable as part of the ordinary course of business. We
have no doubt that it is. See Jandak, 520 F.Supp. at 822; Simmons, 452 F.Supp.
at 396. The question before us, rather, is whether the interception of this call
was in the ordinary course of business. See Briggs, 630 F.2d at 417, 419-20;
Campiti, 611 F.2d at 392; Harpel, 493 F.2d at 351-52.

36

Under Briggs, the general rule seems to be that if the intercepted call was a
business call, then Berry Co.'s monitoring of it was in the ordinary course of
business. If it was a personal call, the monitoring was probably, but not

certainly, not in the ordinary course of business. The undisputed evidence


strongly suggests that the intercepted call here was not a business call. Watkins
received the call and so could not have been soliciting advertising; the caller
was a personal friend; and the topics discussed were mainly social. To that
extent this was certainly a personal call.
37

Appellees argue, however, that the signal topic was Watkins' interview with
another employer. This was obviously of interest and concern to Berry Co., so,
appellees argue, it was in the ordinary course of business to listen. Appellees
point to Briggs wherein the conversation was between personal friends. Briggs
held that because the employee was suspected of passing confidential
information to the friend (a former employee of American Air Filter), the
monitoring was in the ordinary course of business.

38

Reliance on Briggs for the proposition that a personal call can be in the
ordinary course of business is misplaced. In Briggs, the parties stipulated that
the call was a business call and that American Air Filter's business was the only
topic discussed. The court relied heavily on these facts, 630 F.2d at 420, and
the significance of its result is sharply limited thereby. 630 F.2d at 420 n. 8.

39

The phrase "in the ordinary course of business" cannot be expanded to mean
anything that interests a company. Such a broad reading "flouts the words of
the statute and establishes an exemption that is without basis in the legislative
history" of title III. Campiti, 611 F.2d at 392.4 Berry Co. might have been
curious about Watkins' plans, but it had no legal interest in them. Watkins was
at liberty to resign at will and so at liberty to interview with other companies.
Her interview was thus a personal matter, neither in pursuit nor to the legal
detriment of Berry Co.'s business. To expand the business extension exemption
as broadly as appellees suggest would permit monitoring of obviously personal
and very private calls on the ground, for example, that the company was
interested in whether Watkins' friends were "nice" or not. We therefore
conclude that the subject call was personal.

40

While a business call is dispositive in one direction, it is not clear, in this


circuit, whether a personal call is likewise dispositive. In Harpel, the Tenth
Circuit stated:

41 hold as a matter of law that a telephone extension used without authorization or


We
consent to surreptitiously record a private telephone conversation is not used in the
ordinary course of business. This conclusion comports with the basic purpose of the
statute, the protection of privacy * * *.

42

493 F.2d at 351. 5 Accord, Gerrard v. Blackman, 401 F.Supp. 1189, 1191-93
(N.D.Ill.1975) (illegal for doctor to monitor personal calls of an inmate in a
psychiatric ward). Briggs, however, expressly declined to reach the question
because the call in that case was stipulated to be a business call. In a footnote,
the court said:

43

In general, it is hard to see how use of an extension telephone to intercept a call


involving non-business matters could be "in the ordinary course of business,"
since such activity is unlikely to further any legitimate business interest.
However, interception of calls reasonably suspected to involve non-business
matters might be justifiable by an employer who had had difficulty controlling
personal use of business equipment through warnings.

44

630 F.2d at 420 n. 8. This suggests that, if interception of personal calls is


permitted at all, it is permitted only for a very limited purpose. The interception
in Simmons, for example--where personal calls were not allowed on business
telephones (452 F.Supp. 392)--fits perfectly within this rule.

45

Watkins' case, however, squarely presents the issue not reached in Briggs:
whether the contents of a personal call can ever be monitored in the ordinary
course of business. If any personal calls can be monitored, this is probably the
one, because Watkins discussed matters of great interest to the business. But we
have seen that such a rule would be unacceptable. Concurring specially in
Briggs, Judge Clark said:

46

Where I differ from the majority is in not making the suggestion in Footnote 8 a
part of our holding. In the footnote it is suggested that the interception of a nonbusiness call is probably not "in the ordinary [course] of business." I would
make that a positive, affirmative statement because I think the distinction is
reasonably clear as to what can and cannot be intercepted: a business call can
be, a private call cannot be. Harpel [citation omitted] held that a private call
could not be intercepted and I agree with that holding.

47

630 F.2d at 421. This case presents the appropriate occasion to make that
positive, affirmative statement. We hold that a personal call may not be
intercepted in the ordinary course of business under the exemption in section
2510(5)(a)(i), except to the extent necessary to guard against unauthorized use
of the telephone or to determine whether a call is personal or not. In other
words, a personal call may be intercepted in the ordinary course of business to
determine its nature but never its contents.6 The limit of the exemption for
Berry Co.'s business was the policy that Berry Co. in fact instituted.7 It thus

appears that Little was justified in listening to that portion of the call which
indicated that it was not a business call; 8 beyond that, she was not.
Determination of the relevant points in the call is for the trier of fact.
C.
48

A final issue remains with respect to both exemptions. If it turns out that Little
was justified in listening to the beginning of the conversation, either to
determine its nature or with consent, and if it turns out that during that portion
of the conversation the interview was discussed, then we must decide whether
Little was obliged to hang up or, having entered the conversation legally, could
remain on the line indefinitely. We think that the conclusion is inescapable that
these exemptions do not automatically justify interception of an entire call. The
expectation of privacy in a conversation is not lost entirely because the privacy
of part of it is violated. Under title III a law enforcement officer executing a
wiretap order must minimize his intrusion to the extent possible. 18 U.S.C. Sec.
2518(5). Therefore, Little was obliged to cease listening as soon as she had
determined that the call was personal, regardless of the contents of the
legitimately heard conversation.

49

The violation of section 2511(1)(b) is the intercepting itself, not the


interception of particular material. It is not necessary to recovery of damages
that the violator hear anything in particular; she need do no more than listen.
Thus, the reinstatement of Watkins and her subsequent departure, while they
may affect the amount of actual damages, do not moot or render de minimis her
claim. Watkins' right to recover at least the minimum statutory damages flows
from the interception, not from the actual damage caused. It is for the trier of
fact to determine at what point the telephone should have been hung up.

50

In the context of the inadvertent overhearing by a switchboard operator in


connecting calls,9 the courts have given the trier of fact wide latitude in
determining at what point the telephone should have been hung up. In United
States v. Savage, 564 F.2d 728, 732 (5th Cir.1977), the court permitted the
overhearing of 10-15 seconds of a call because the operator was elderly (and so
slow to hang up anyway), the woman on the telephone was distraught and
might have needed help, and the interception was very brief. In State of Arizona
ex rel. Flournoy v. Wren, 108 Ariz. 356, 498 P.2d 444, 448 (Ariz.1972), brief
additional overhearing was held inadvertent because the operator was not
physically able to hang up the telephone immediately. Obviously, neither of
these cases stands for the proposition that indefinite listening is permissible.
They represent sensible applications of the appropriate legal standard to
specific facts.

51

We are less enthusiastic about the result in United States v. Axselle, 604 F.2d
1330, 1335 (10th Cir.1979). There the operator listened for 3-5 minutes after
making the connection (relatively, a very long time)10 because the conversation
"sounded interesting." The Tenth Circuit expressed concern over the length of
and reasons for the interception, but held that "after hearing that opening
remark, the listening which continued could be found not willful, as the trial
court did [citing Flournoy ]." 604 F.2d at 1335 (emphasis supplied). We find
this result troubling. It absolutely contradicts the meaning of the operative
language--"inadvertent"--nor is it supported by a finding that indefinite listening
is permitted. We do not commend Axselle to the district court as an example of
fact-finding for Watkins' case.

IV.
52

We hold that this case was not properly disposed of by summary judgment, as
genuinely disputed issues of material fact remain. A detailed factual inquiry
into the interception is necessary if the standards set forth above are to be
adequately addressed. Among the factual questions that should be considered
are: What was the monitoring policy to which Watkins consented? Did Little
know that Watkins had received the call and if so did that necessarily indicate a
personal call? How long was the call? When was the interview discussed? Were
other subjects discussed? For how long did Little listen? How long does it take
to discover that a call is personal, for example, is there an immediately
recognizable pattern to a sales call? This list of questions is not exhaustive, but
it is hoped that it points out the directions in which further inquiries should be
pursued.

53

The judgment of the district court is affirmed with respect to the dismissal of
the claims based on 47 U.S.C. Sec. 605 and the grant of summary judgment to
South Central Bell. With respect to the claims based on title III against Berry
Co., Little, and Wright, the judgment of the district court is REVERSED and
REMANDED.

Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting
by designation

Pub.L. No. 90-351, Sec. 802, 82 Stat. 212. All section references in the text will
be to the U.S.Code

Pub.L. No. 90-351, Sec. 803, 82 Stat. 223

The police station was supplied with 10 lines: 8 were tape recorded
continuously with an audible warning sound; 1 was continuously taped without
a sound, for investigatory purposes; and 1 was not monitored. All officers were
informed of this system and as duty officers had had some familiarity with its
use. The Jandak court found that under these limited circumstances the officer's
specific expectations could not be given controlling weight. 520 F.Supp. at
817-18, 824-25

This passage in Campiti criticizes any expansive reading of Briggs

Interception was permitted in James v. Newspaper Agency Corp., 591 F.2d 579
(10th Cir.1979). The James opinion, however, does not discuss the nature of the
call. As it made no effort to distinguish Harpel, also a Tenth Circuit case, we
may assume that James involved a business call

This distinction would not obtain so strongly in the exemption in Sec. 2510(5)
(a)(ii) for law enforcement officers. In the case of prisoners' calls, the courts
have held that random, routine monitoring of personal calls (but not to
attorneys) is permissible for security reasons. United States v. Paul, 614 F.2d
115, 117 (6th Cir.), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796
(1980); Campiti, 611 F.2d at 392; Crooker, 497 F.Supp. at 503. The uniqueness
of the prison situation indicates the very different result that should follow in a
case like Watkins'

The scopes of the consent and business extension exemptions do not


necessarily coincide. It is only because Berry Co.'s monitoring policy, to the
extent that Watkins consented to it, was the same as its legitimate business
interest in nonconsensual interception that they coincide in this case

Watkins alleges that Little knew that the call was incoming and if so could not
be business. If that is true--and we express no opinion whatsoever on it--the
entire listening would have been unlawful

Inadvertent interception does not violate Sec. 2511(1)(b)

10

It has been widely advertised that one may reach out by telephone and touch all
sorts of people in 3 minutes or less; it seems to us that it should not take that
long to determine whether a call is of a personal or a business nature